Tobacco ban for retailers will spark disputes
As the new ban on the display of tobacco products comes into force this month, retailers operating larger stores will have already refitted their gantries and display units to meet the new requirements… By Gavin Matthews, Head of Retail at Bond Pearce.
However, as guidance from LACORS, the local government central body responsible for overseeing local authority regulation sets out, there is more than first meets the eye to complying with the new regime than simply refitting premises and it is clear that staff training is of paramount importance.
The guidance, produced with input from the British Retail Consortium, sets out practical steps retailers can take to comply on an operational level with the new law set out under the Tobacco Advertising and Promotion (Display) (England) Regulations 2010 and the Tobacco Advertising and Promotion Act 2002. It identifies the following areas of risk which businesses must guard against:
– Staff conduct in response to a “requested display” by a person over 18
Never Miss a Retail Update!– Incidental displays of tobacco to others during a requested display
– Incidental displays of tobacco during restocking, maintenance and cleaning
– Staff inadvertently leaving tobacco products on display after one of the above activities
– Temporary displays of tobacco during staff training
– In all cases a temporary or incidental display of tobacco must not last “longer than as is necessary” and the area on display must not exceed 1.5 sq m.
It is not difficult to envisage what may prove to be bones of contention between businesses subject to inspection and local enforcement officers when monitoring the behaviour of staff engaged in sales and restocking of tobacco products. This is likely to prove a hotbed of dispute as the new law is rolled out and whilst it remains untested by the appeal courts. We identify below what may prove to be key problem areas:
For how long is a display “necessary”? The legislation states displays during restocking are only allowed for as long as necessary to place the products on the shelf and those during a display to a person over 18 no longer than necessary to remove the product from the shelf. This raises difficult questions which may prove critical when determining whether an offence has been committed. How fast are staff expected to work? What distractions are acceptable? At what point is the activity in question being “actively carried out” as the exemption requires and when has it ceased? These do not present clear cut answers. Much will depend on the circumstances of each case and all staff engaged in sales, cleaning and restocking need to be fully aware of these grey areas.
Displaying tobacco products whilst moving them through the store is prohibited altogether. Steps will need to be in place to ensure products are not visible to the public whilst being moved. In circumstances such as a purely incidental display conveying tobacco from the stockroom, LACORS envisage that enforcement action may not be warranted unless the display could have been reasonably avoided. However it is important to be aware that the decision to take action ultimately rests with the local enforcement officer in question, with regard to the local authority’s enforcement policy. The guidance provided by LACORS is not legally enforceable and remains guidance only.
What amounts to a “requested display”? This requires a particular request by an individual to purchase, or for information about, a tobacco product. LACORS point out that a more general enquiry from a customer about the range of tobacco products on offer might not meet this test and only justify use of a pictorial price list instead. There is no further guidance on this point at present and it may fall for the courts to rule on this, at the potential expense of the business facing prosecution.
Age verification checks. These must now be carried out before displaying a tobacco product. This represents a critical new timing requirement to challenging a customer’s age and staff training in current policies such as “Challenge 21” will need to be updated accordingly and implemented if not already.
There remains a good deal of uncertainty as to how key tests in the legislation will be interpreted by those enforcing them and by the courts and how they are to be understood by businesses subject to the new regime. With the threat of criminal sanctions including unlimited fines for failing to comply, it is vital those businesses caught by the new law who have not already done so implement a rigid staff training program and ensure that sufficient supervision and record keeping is in place to protect them from costly enforcement action.
